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Kentucky Board Of Tax Appeals Hearing Procedures Regulation Amended

05.02.2007

In April 2007, the Kentucky Board of Tax Appeals (“KBTA”) Hearing Procedures Administrative Regulation, 802 KAR 1:010 was significantly amended. The Regulation, as amended, is scheduled to be heard in May at a meeting of the Administrative Regulation Review Subcommittee.

The proposed amended Regulation makes clear that the filing of a Petition of Appeal occurs when it is received by the KBTA. It also provides that upon receipt of a Petition of Appeal, the KBTA must provide notice of such filing to the Appellee, which is generally the Department of Revenue, Finance and Administration Cabinet. The Appellee or the Appellee’s attorney must file an Entry of Appearance within 30 days of the notice date.

The Regulation completely changes the procedures for discovery in actions before the KBTA. According to the Regulation, “Discovery may be obtained without prior Order of the Board or Hearing Officer pursuant to Kentucky Rules of Civil Procedure 30, 31, 33, 34, and 36, as amended.” This is an important change as previously, discovery could only be obtained with the KBTA’s permission. Further, a response to a discovery request may not be filed with the KBTA unless required by a KBTA Order.

The Regulation amends the hearing procedures before the KBTA and provides for the filing of a pre-hearing document (an original and four copies) which includes: summaries of the party’s position on any issue of fact in dispute or issue of law raised by the appeal, a written statement of agreed and undisputed facts, a list of witnesses and their contact information, and a copy of all exhibits to be introduced. The pre-hearing document must be filed at least 30 days prior to the hearing along with proposed findings of fact and conclusions of law and a proposed final or recommended order.

Briefs may be filed upon Order of the KBTA, or if Briefs are not ordered by the KBTA, Briefs may be filed by the parties. Briefs must include a copy of any legal authorities relied upon in the Brief unless the KBTA waives the requirement.

The proposed Administrative Regulation, as amended after comments, provides for summary disposition of an appeal, whether in whole or in part. Notably, facts stated in the original Petition or Appeal as well as any documents or exhibits attached to the petition may be relied upon as undisputed material facts by the Appellee. If a non-moving party fails to respond to a Motion for Summary Disposition within 20 days, the KBTA will assume that there are no factual issues before it to be considered in deciding the legal issues. However, if the non-moving party files a Response, then the moving party shall have 10 days to file a reply to the Response.

The Regulation also provides that KRS 446.030 which provides for the computation of time, applies to KBTA proceedings.

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